Tuesday, 20 March 2018

Citizens’ Rights after Brexit: A Personal Perspective

Professor Steve Peers,
University of Essex

I rarely say anything very
personal on this blog – or indeed, in any other context. But I think it’s important
to discuss immigration more often from a personal perspective, not just in the abstract.
Of course economic statistics are useful when discussing economic impact, and I
hope my detailed
legal analysis of the citizens’ rights provisions of the draft Brexit
withdrawal agreement is useful for activists and negotiators. Yet since
migrants are often compared to pestilence or floods, I think it’s necessary to
point out how they are actually individuals and families living day-to-day
lives – and how changes in immigration rules will affect them as people, not as
insects or natural disasters.

I’m not directly affected by Brexit
immigration issues as such. But I did migrate to Canada as a child, and as I’ll
explain, I think my story is relevant by analogy to explain the problems that EU27 and UK citizens who have moved may face after Brexit, and why many of them are concerned and annoyed. Some other people’s stories
will have been more challenging than mine; but my case here isn’t for sympathy
for me, but for empathy for others.

I moved to Canada aged 8 with my
parents. My dad had been recruited for a factory job, and my mum hoped to
continue her teaching career. But my mum found that, contrary to what she was
told, she couldn’t continue teaching without retraining from scratch, starting
with a four-year degree. This wasn’t feasible, so she took a series of other,
less well-paid jobs instead. And my dad soon found that he had merely swapped one
troubled industrial city in Britain for another troubled industrial city in
Canada. The job he’d been recruited for vanished, and he had spells of
unemployment and time off work due to illness. Eventually, he returned to England
on his own.

Every unhappy family is unhappy
in its own way; but any unhappy
family can have its life made even worse by the workings of immigration law. Yet
despite my parents’ employment problems and my dad’s eventual departure, this
didn’t happen to us. No surprise knocks on the door. No sickness in our stomachs
as we opened an official letter. No concern that answering the phone would be
the first step in our removal from the country. No need to face a “hostile environment” when
we opened a bank account, rented a flat, or went to school or work, at the
behest of a failed political advisor who had built a cult around an absurd net
migration target.

Why not? Because, when we first landed
at the airport in Canada, we had a meeting with immigration officials that
lasted about three days – at least, as 8-year-olds measure time. (In adult
time, it was probably a couple of hours). As a result of that meeting, when we
stepped out of the airport, my classic black British passport had stapled
inside it a precious pink form – granting me, along with my parents, permanent residence
status already.

Let’s map this on to what EU27
citizens who are in the UK already will face after Brexit. Those who are
already here will have to apply for “settled status” – even if they already
have permanent residence. In principle this status will be granted unless they
have a serious criminal conviction, but the Home Office is renowned for its high error rate.
Also, there are gaps in the agreement – for instance, for those returning to
the UK with a non-EU family, or for those who were staying at home full-time
for family reasons.

Compared to my own situation, having
to meet the permanent residence criteria could have been a problem. My parents’
gaps in employment, and my father’s departure, would have counted against us
(my mother wasn’t a citizen of Canada or the UK, so by analogy wouldn’t have had
a free movement right in her own name). The Brexit withdrawal agreement continues
a special rule in EU free movement law which protects children of a former
worker who are in school, and their parent carer. That would have applied to me
and my mum; but the case law says that it’s not a route to permanent residence,
and the exact employment and benefits rights of the parent aren’t clear. Moreover,
the withdrawal agreement has limits on the recognition of qualifications; limits
like that when we moved had destroyed my mum’s teaching career.

The withdrawal agreement stores up
problems for other families in future, too. The UK government fought
relentlessly to limit admission of family members of EU27 citizens after Brexit
Day, not caring that this would equally limit family reunion for UK citizens in
the EU27 too. In the text tabled yesterday,
it was clear that the UK government had “won”: future spouses and other close
relatives will be subject to more restrictive national law after the end of the
post-Brexit transition period. Note that this won’t just apply to non-EU family
members of EU27 citizens, but to EU27 citizens’ EU27 family members too; and the effect of Brexit will also be to
limit family reunion for UK citizens
who have an EU27 family member. (There’s an exception to these rules for children
of EU27 citizens, but only if they have custody of the children; so that
exception may not matter much if the spouse who has custody can’t be admitted).
A whole category
of vulnerable families – kids who are British citizens, with a non-EU parent
who might face expulsion – are simply left out of the withdrawal agreement
altogether.

So future families will have
fewer rights under the withdrawal agreement; everyone has to reapply for lesser
rights than they have now; and some people are left out of the agreement
entirely. While the UK government has promised to protect some of the latter
(returning UK citizens, and carers) unilaterally, can it be trusted? And can the Home Office be trusted to make every
decision correctly, in light of its history of administrative problems?

Let’s hope so; but I can see why some
EU27 citizens who came to this land with such hope now regard its government
with such fury. Recall that UK citizens living in the EU27 states were promised
(in a Daily Telegrapharticle
by Leave campaigners widely disseminated during the referendum) that
international law would automatically guarantee their full acquired rights,
including free movement within the EU27 states (which is not protected by the
draft withdrawal agreement). Similarly, the official Leave campaign likewise promised
to guarantee “no less favourable rights” for EU27 citizens in the UK, with “no
change” to their position; and they would be “automatically granted indefinite
leave to remain”.

I’ve even experienced this ethical
gap first hand, when I worked with a number of people to suggest a model for
giving EU27 citizens a unilateral
guarantee of their rights in the UK. Two Leave-supporting MPs – Gisela Stuart
and Suella Fernandes (now a minister in the Brexit department) supported the
idea, but then voted
against such guarantees in Parliament. All this, before we even consider statements made
on buses or about Turkey. As Brexiters’
unlikely hero might have said: never in the course of British political history
have so many been lied to so much by so few.

33 comments:

What a profoundly stupid comment. As I said, I migrated to Canada with a British passport. As a UK citizen now living again in the UK (as my bio makes clear) I will express whatever the hell opinion I want.

Perhaps he thought I still lived in Canada but didn't stop to think why and how I was involved in an inquiry into what the UK government should do after Brexit. Did I fly in from Canada? Or the MPs had a jolly in Toronto?

Thank you for sharing this. It seems generally believed now that the "deal" on citizens rights is done. Let us hope that it is not, because currently it is very divisive and unfair on blameless people. I'm afraid that, whilst the arrangements have been driven by the UK side, I cannot see that the EU negotiators have sufficiently committed to the protection of citizens rights either. Let us hope the European Parliament will weigh in to push for a fairer arrangement.

Take all EU citizens out of Uk S this country is for british citizen,ens and family and not for world to settle in this small national.Remember adopt work for year and leVe UK nation for 3 years not became permanent creatures or become leech.

That's a...patriotic use of the English language there. The issue isn't whether the world comes to the UK, it's what happens to EU27 citizens who moved here before Brexit. Both Leave campaigns said they could stay, but you obviously have a neo-Nazi take on this. Be well.

Obviously these trolls are more than happy to see hundreds of thousands of British pensioners, currently residing in France, Spain etc, turn up at Dover, homeless, and ready to block up the NHS that is only just about managing - and that's with the help of EU nurses and doctors! No wonder the UK is heading down the pan with ignorant, illiterate people like "Unknown" and Steve Christie permitted to vote in the referendum, while so many UK tax paying Brits had no vote!

Thanks for this blog, prof.What's very clear is that we're all losing out on this.

From my own personal story, I'm British, but my wife is from the EU27 and because she has now been at home looking after our kids for 7 years our security is far from certain with no, as I understand it, guarantees, even in the withdrawal agreement. Difficult choices ahead.

Hi Steve, thanks for sharing this with us, exactly some of the thoughts regards trust of UKgov and Home Office. My wife is EU national, and I'm hoping that the Scottish Govt can get devolved rights over the whole immigration issue. Our problem is most folk migrate from Scotland, for whatever reason, yet the few coming in are often singled out despite being useful and indeed essential members of the small communities they stay in. Several high profile expulsion battles in last few years. I see even you have trolls with blinkered, biased, ignorance frothing at the keyboards.They have so little understanding or concept of the reality! Thank you for your excellent post and work!

My mother in law has 3 of her 4 children living and working in the UK for many years. It a disgrace that both the UK and EU are so ready to give up her rights to have a family life after Brexit. This was not on the cards when her children choose to make their lives in the UK! And in case any nasty trolls our out there....they are all net contributors to the UK economy.... never taking any benefits.

Steve, I am in touch withg so many EU nationals working here, paying tax, NOT claiming benefits ( we leave that to the lazy BritsOST of applying for citizenship is huge over £1k per person and as many families do the low paid, caring jobs Brits won't touch with a bargepole, finding the money is an enormous chore. And then there's the utterly stupid Citizen test...75% pass or you're out. I doubt if many Brits could answer some of the questions (How long were the Romans in Britain). The Home Office has a policy of 'Creating a Hostile Environment' and boy, are they! As for the Brits in the EU...they don't know whether they will be able to trade cross- border...they will certainly have problems if they rtry to return to the UK! It is a mess. The only people who will come out of it smiling are the rich, MPs and racists

tahnk you for a very good article. one incredible shift is indeed the reassrances and strong affirmations made during the campaign regarding the rights of EU citizens exercising FoM ( both UK in EU and EU27 in the UK), and how very quickly and easily they went against what they has previously stated. They were given an opportunity by the EU, a week after art 50 was triggered-to keep all those exercising FoM with the chance for arrangements to remain exactly the same- such an easy option for all ( including the gov). May ignored it, and put settled status forward. And again in teh vote in Parliament, they d not take the recommendation of teh HoL into account. No wonder EU citizens in the UK feel incredibly hard done by by the gov. Especially when we are then referred to as bargaining chips, and after 2 yrs, are still in limbo, looking more likely that a great number will face huge prbs with the SS- refusals and loosing the right to access our data to see on what ground it has been refused. Sadly we have come to see a side of the Uk none of us could see- it undermines confidence, trust in a country where we chose to live, and for many of us, difficult as we have children with British citizens, so our right to family life is not taken into account- for those who face not being granted SS.

Last paragraph very telling - people who have benefited from coming here or who are the children of people who came her who then vote against helping others to do the same. The whole thing is such a mess. And meanwhile in among all these major problems for families, all of us UK citizens are about to lose Freedom of Movement if we dont stay in the Single Market - yet no-one is speaking of this - hence I started the Big EU Passport Campaign.

I have permanent residence in Spain as when I first arrived (I am a UK national) I had 2 jobs and my partner (Spanish national) was in part time work while she raised our daughter (also a Spanish national) . This situation continued long enough for me to apply for and successfully obtain permanent residence . Since then the economic situation has become worse and worse .. First I lost my weekend job and now only have one job during the week then my partners boss decided to close the shop and she is now drifting in and out of temporary 3 month jobs or worse cash in hand work .. Pretty worried that I was no longer exercising treaty rights I was relieved to find that being permanent meant that my residency was no longer subject to economic requirements. Now of course that is all in the air and I am pretty sure that as a one wage family I don't have a snowballs chance in hell of successfully getting the new status .. Worse still I can't take my Spanish partner and daughter back to the UK as I would need to be earning in the region of 25 grand . My permanent residence certificate counts for nothing after brexit and I have the brexiters to thank for that . And before any troll says "it was your decision to move so live with it" (I've heard it a hundred times) I will remind them I moved here in 2008 ... Before any referendum was even thought off . I moved with the reasonable opinion I had the right to live here with my family . Now I am looking at possibly being separated from them .

It's only an option for EU27 countries to have their own "settled status" process for UK citizens there - hopefully there will be nothing in what Spain and others do that would mess up UK citizens with permanent residence, or other status, there, although there will be equivalent concerns about whether people might fall through the cracks or administrative errors are made if such a process is applied.